CIV/APN/279/86

In the applicat

PAKI MOAKI Applicant

vs

MOJABENG MOAKI 1st Respondent

RETSELISITSOE MOAKI 2nd Respondent

MATHEAME MOAKI 3rd Respondent

THESELE MOAKI 4th Respondent

PALLO MOAKI 5th Respondent

TAU-KOBONG MOAKI 6th Respondent

KEHANNE MOAKI 7th Respondent

JUDGMENT

Delivered by the Honourable Acting Chief Justice Mr.
Justice J.L. Kheola on the 1st day of October, 1986.

On the 5th September, 1986 the applicant brought an
application ex parte and sought an order in the following
terms:

"1. That a Rule Nisi be issued returnable on a date
and time to be determined by the above Honourable Court calling upon
the
Respondents to show cause why:

1. 
   First Respondent should not be directed to
   vacate
   the premises known as Butha-Buthe Hotel
   and Bottle store in the
   Butha-Buthe Reserve and
   go and stay at Matamong in the
   Butha-Buthe
   Reserve together with the minor children of
   the
   marriage who are the Fifth, Six and Seventh
   Respondents.

   
   

2. 
   Second, Third and Fourth Respondents should not
   be
   directed to vacate the premises known as
   Butha-Buthe Hotel
   together with any other premises
   belonging to applicant as they
   are all majors, save
   that Fourth Respondent can go and live with
   the
   First Respondent.

   
   

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3. 
   Respondent should not be directed not to touch
   any
   property belonging to applicant including
   clothing save the
   property that Applicant allows
   them to use at Matamong in the
   Butha-Buthe Reserve.

   
   

4. 
   Respondents should not be restrained from trading
   in
   any premises belonging to applicant wherever
   situated.

   
   

5. 
   First Respondent should not be directed to
   accept
   maintenance of R1,050-00 that she claimed from
   applicant
   in March 1986 for herself. Fourth, Fifth,
   Sixth and Seventh
   Respondents.

   
   

6. 
   First, Second and Third Respondents should not
   be
   directed to hand over the keys of any premises
   belonging to
   applicant that are in their possession.

   
   

7. 
   First Respondent and the two other Respondents
   should
   not be directed to hand over the post office box
   keys
   which are in their possession.

   
   

(h) Respondents should not be directed to hand over the
following motor vehicle to applicant: a Van registra­tion number
B 1173,
a four wheel drive van registra- , tion number B 0270 and
ford truck registration number B 0180 International Truck
Registration
number B.0316.

(i) First Respondent should not pay costs of this
application."

The Rule Nisi was issued and made returnable on the 15th

September, 1966. After several extensions of the
rule the matter
was finally argued before me on the 1st October,
1986. The rule
was confirmed but no order was made as to costs.

What follow are my reasons for the confirmation of the
rule. In his founding affidavit the applicant deposed that the 1st
respon­dent
is his second wife, married to him under customary
law. The rest of the respondents are his children by his marriage
with the 1st
respondent. All the respondents are living at
Butha-Buthe Hotel in

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the Butha-Buthe township which is one of his businesses.
On the 4th February, 1986 the 1st respondent assisted by the 2nd, 3rd
and
4th respondents attacked him while he was counting money in the
Butha-Buthe Hotel. He tried to frighten them off with a gun which
he
fired, however, the 1st respondent caught him from behind while the
2nd respondent shot him twice. The bullets went through his
body and
hit the 1st respondent.

Because of the events of the 4th February, 1986 the
family is divided and there is mutual suspicion and fear.
Consequently they cannot
live under one roof. On the 29th August,
1986 the Resident Magistrate of Butha-Buthe found him not guilty of
shooting the 1st respondent
but convicted him of attempted murder in
respect of the 2nd respondent. He has appealed to the High Court
against the conviction.

As a result of the events of the 4th February, 1986 he
found it difficult, if not impossible, to live with the respondents
at Butha-Buthe
Hotel and is now living at Tsime where he has a bottle
store run by his first wife. In the mean time the 1st respondent,
assisted
by the 2nd, 3rd and 4th respondents, is using his Liquor
Licence and is trading at Butha-Buthe Hotel without his authority.
The 2nd
and 3rd respondents are using his clothing which he left
behind when he went to Tsime.

The applicant deposed that at the moment he has an
overdraft of M550,159,50 with Lesotho Bank and he has attached not
only a bank
statement showing the overdraft but also a letter from
the manager of the Lesotho Bank showing that unless payment of the
overdraft
is made the matter shall be handed over to the bank's
lawyers. The overdraft has not been attended to since the 4th
February, 1986
when he wont to live at Tsime.

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He has had serious problems with the 1st, 2nd and 3rd
respondents. The cause of the problem was that the business premises,
i.e. Butha-Buthe
Hotel, were used as their residence. Second and
Third Respondents had to leave home because they were over 21 years
of age and were
also taking money from the business. Since the said
attack of the 4th February, 1985, they have come back to Butha-Buthe
Hotel without
his permission. He has now resolved to remove the 1st
respondent from Butha-Buthe Hotel to Matamong where he has a house
with six
rooms; there is plenty of furniture from the hotel with
which he could furnish the rooms.

He is offering Ml,050 per month as maintenance for the
1st respondent and the minor children excluding the 2nd and 3rd
respondents
who are now majors and have to fend for themselves.

In her opposing affidavit the 1st respondent deposed
that the place in Matamong where the applicant wants her to go and
live with
the minor children is not a residential house but that it
is in fact rented flats occupied by tenants. The vacant ones are not
in
a habitable condition. She feels that the applicant has failed to
provide suitable alternative accommodation as shown in
CIV/APN/186/86,
and that the place known as Butha-Buthe Hotel is her
only home.

She alleges that since the 4th February, 1986 the
applicant has not been supporting her and the minor children. She is
operating the
bottle store at Butha-Buthe Hotel in order to maintain
herself and the minor children. She denies that she is the second
wife of
the applicant because when she married him it was never
disclosed to her or to her parents that the applicant had a wife. She
refers
to the other woman as a concubine of the applicant.

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It was submitted on behalf of the respondents that the
present proceedings are res judicata inasmuch as in C.C. 10/86
of Butha-Buthe magistrate court and in CIV/APN/186/86, the applicant
sued the same parties and the subject
matter of the dispute was the
same. This submission must be rejected outright. In C.C. 10/06 the
1st respondent was not a party.
In CIV/APN/186/86 the parties and the
subject matter of the dispute are the same as in the present
application. The previous application
was dismissed on the ground
that the applicant had failed to provide a suitable alternative
accommodation for his wife and children
when he sought an order
ejecting them from the hotel which had been their only home. This
means that if in the present proceedings
the applicant is providing a
suitable alter­native accommodation the question of res
judicata does not arise. The judgment was not a final one.

It is common cause that prior to the 4th February, 1986
the applicant and the 1st respondent together with the minor children
had
been living at Butha-Buthe Hotel as their only home because the
applicant has not built any residential homes for his two wives.
Because of the events of the 4th February, 1986 the applicant says
that he is unable to run Butha-Buthe Hotel because he cannot live
there under the existing atmosphere as the respondents and he hurl
accusations at each other and they all feel unsafe in the presence
of
each other.

I do not think that it is necessary at this stage for me
to decide who was guilty for the events of the 4th February, 1906.
The fact
is that the family fought and the applicant and the 1st
respondent sustained injuries. The other fact is that at the moment
the animosity
among the parties makes it impossible for them to live
together under

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the same roof. Thirdly, the applicant's overdraft at
Lesotho Bank is standing at more than half a million maloti and it is
not being
reduced because the applicant is not running Butha-Buthe
Hotel. It seems to me that unless the applicant is put back into the
position
of running the business the whole family is facing a
financial disaster which may lead to sequestration.

I do not agree with the 1st respondent that the
applicant ejects her from the hotel so that she and the children may
live in poverty.
He is actually offering her M1.050 per month as
maintenance and suitable accommodation. The 1st respondent asked the
Court to go
and see the rooms offered as the alternative
accommodation to satisfy itself that they are not in a habitable
condition. I did not
find it necessary to inspect the rooms because
in her own affidavit the 1st respondent said some of the rooms still
had tenants;
this means that they are in a habitable condition. The
applicant offered all the furniture being used by the 1st respondent
at the
hotel.

I came to the conclusion that the rooms (6 in number)
offered to the 1st respondent are a suitable alternative
accommodation.

The applicant has proved that he is. a polygamist and
that the 1st respondent is his second wife. He handed in two
certificates of
declaration of marriage by native custom of the
Republic of South Africa which show that he married his first wife
Evelina in 1936
and the 1st respondent in 1961. The 1st respondent
cannot be telling the truth that for so many years she was not aware
that the
applicant had another wife. She had been living with that
other woman at Butha-Buthe Hotel for a very long time.

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The issue before me is straightforward inasmuch as it
does not concern the inheritance or the division of the estate of a
polygamist
after his death. The issue concerns the marital power of
man married under customary law. The position of women married under
customary
law is described by Duncan in his book Sotho Laws and
Customs at page 5 in the following words:-

"Traditionally the position of women throughout
their lives is that of a minor. Before they married they are the
children of
their fathers; after their marriage they are the children
of their husbands."

Another exposition of the law regarding the status and
rights of women married by customary law was made by Lansdown, J. in
the case
of Bereng Griffith v. 'Mantsebo Seeiso Griffith,
1926-1953 H.C.T.L.R. 50 at p. 54 where he said:

"Under the early Basuto social system, which was
wholly polygamlst. the husband was the head of the family, with some
limited
authority over him by his father if still living; each of his
wives had a House of her own with cattle assigned to it, and the
property
of one House could not be used for the purposes of another;
the first wife held a position of seniority in relation to the junior
wives which entitled her to the respect of the latter. When the
husband died, the property of each House devolved upon the eldest
son
of that House, but the widow and her children were entitled to
maintenance out of it. Under such a domestic system there was
little
room for the exercise of any authority by a wife or widow.
Nevertheless, she was not without her rights in respect of her
treatment . by her husband or his father who might be in a position
of some authority as head of the kraal or village, or in respect
of
the property of her House; nor was she deprived of remedy, for she
appears to have had access to the court of the Chief, although
usually she would have sought such access through the medium of some
male representative."

In the present case the applicant is the head of his two
houses but has unwisely not assigned any property to any of his
houses.
The

/

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wives have been living together at Butha-Buthe Hotel and
the 1st respondent has failed to prove that the hotel was assigned to
her
house. The mere fact that she has been helping the applicant in
the running of the hotel and the bottle store does not mean that
the
property was assigned to her house. Although the applicant is alleged
to own a number of businesses it seems that Butha-Buthe
Hotel is the
main one which generates a lot of money. Ever since the applicant ran
away from the hotel the overdraft at Lesotho Bank
has not been
reduced. The 1st respondent is still trading at the hotel but she is
not prepared to pay the overdraft. She claims that
the money she gets
from the business is for her maintenance and the minor children. She
is not aware that unless the overdraft is
paid she may lose the hotel
and some other businesses if seque­stration proceedings are
instituted.

As head of the family the applicant has the right to
decide where his wives may live. The marital home is chosen by the
appli­cant
and doing so he may not oppress his wife. If he does
so the wife has a remedy and may even go to a court of law if the
family fails
to resolve the dispute. The two wives of the applicant
have

no residential houses and continue to live within the
business

and

premises at the hotel and at Tsime bottle store. It is
clear that the business properties which the applicant owns fall
under unallocated
property and the applicant is free to use it as he
sees fit. By deciding that the 1st respondent should go and live at
Matamong and
offering a reasonable amount of maintenance, I do not
think that the applicant is acting unreasonably nor in any way
oppressing the
1st respondent. She cannot expect to live in luxury
when the applicant's business empire is experiencing some financial
difficulties.

Reference was also made by Mr. Maqutu, counsel
for the appli­cant, to Hahlo, Husband and Wife 4th edition at
page 108' where the learned author says:-

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"The husband has a decisive say in all matters
concerning the common life of spouses. By virtue of this power, which
cannot be
excluded by antenuptial contract, he determines inter alia
where the spouses are to live, provided that the wife is not obliged
to
follow him if he acts unreasonably.

Although the learned author was referring to a marriage
under civil rites, it seems to me that even in a marriage under
customary
law the position is the same, if not worse. Under customary
law the husband can remove and return the site of the home and arable
lands to the chief. (Duncan, Sotho Laws and Customs, p. 7).

The applicant has proved on a balance of probabilities
that living under the same roof with his second wife and her children
who have
reached the age of majority, has become impossible and
dangerous to all of them. As head of the family and the administrator
of the
estate he has decided to provide alternative accommodation,
which appears to me to be suitable. The Sesotho maxim; "malapa
ha
a jane" has no application in the present case because
Butha-Buthe Hotel and bottle store have not been allocated to the
second
wife. The hotel and other businesses are unallocated property
under the administration of the applicant.

For the reasons stated above I confirmed the rule and
made no order as to costs.

J.L. KHEOLA
ACTING CHIEF JUSTICE.

6th November, 1986.

For Applicant - Mr. Maqutu
For Respondents - Mr.
Kolisang.